January v. Marler

BROWN, C. This is a suit in equity to set aside a deed from defendant Levi Marler to his sister, the defendant Mary Ann Rebecca Marler, dated May 8, 1912, and conveying forty acres of land in Reynolds County, for fraud against plaintiff, a creditor. The facts are that on May 31, 1912, one Smith recovered, in the Reynolds Circuit Court, judgment against Marler for two hundred and eight dollars upon a' promissory note. He assigned this judgment, to plaintiff on June 3, 1912. Plaintiff caused execution to be issued on the judgment .and levied on this land, which was sold by the sheriff, and he became the purchaser, receiving a sheriff’s deed therefor. On September 13,- 1913, Mary Ann Rebecca Marler conveyed, the land to the defendant Coleman, who knew the facts concerning the indebtedness. [546] The only question made by the parties is whether or not the forty acres of land involved in the controversy was the homestead of the defendant Levi Marler at the time of the conveyance to his sister. > The land was of little value, only fifteen acres of it having been cultivated up to the time of the trial. It had sufficed as a home for the Marler family for forty years. The father died twenty-two years before the trial, leaving a widow and five living children, and two children of a deceased daughter. The defendant Levi bought out all the other heirs, and he and his defendant sister continued to live on the land as their home until, the execution of the deed to defendant Coleman, the mother living with them until her death1, which occurred six years before the trial. At the time of her death Levi was forty-one years old and Mary Ann Rebecca forty-five. She worked out of doors on the place as well as in the house, and some of the little stock which they accumulated was owned by her. There was nothing in tbe evidence to indicate that she had or earned any money for her own support, otherwise than by her labor on the place. Her position there is described by one of appellant’s witnesses as follows: “I know Levi Marler had control of the place; that he managed the place and supported her. He is an unmarried man; he never married.” The evidence on both sides tends strongly to support this statement. The only evidence relied on by appellant to show any other relation' is that she worked hard and accumulated a little stock of her own while doing so. It is admitted by the parties in their briefs that the only question in this case is whether, at the time of the execution of the note which is the foundation of the judgment nnder which the appellant claims, Levi Marler was “a housekeeper or head of a family” within the meaning of that expression as used in Section 6704, Revised Statutes 1909. He owned the place, and it was his home in the sense that it was his only domicile. His occupation of the premises must, in the [547] absence of all explanation, be attributed to such ownership. As owner and occupant he was, prima-facie at least, in control of all the activities of his own household. It was his home, and, in the sense in which the term is used in the section we have already cited, he was the housekeeper. The homestead statute seems to have been, framed upon the principle that the home is a thing to be encouraged, and it requires no argument to demonstrate its public utility and that the community in which1 the people live in their own homes is a fortunate one. This statute applies alike to “the homestead of every housekeeper or head of a family” and this description is repeated, carefully preserving its disjunctive form, in section after section of the act, so that we are not at liberty to assume that the form was carelessly or awkwardly used. We must assume that the legislative intention corresponded with the legislative words. The word “homestead” as used in the foregoing quotation from the statute had its ordinary meaning in such a connection, and that there should be no mistake in. that respect the Legislature defined it as the “dwelling house and appurtenances, and the land used in connection therewith” to the extent specified. By the passage of the act this became the legal definition of the word homestead as used in it. We mention these particulars to indicate that in case of this particular ‘act it is unnecessary to enter upon any discussion of the meaning of the words “head of a family.” The “family” is the personnel of the home, and it is unnecessary in this case to discuss the degrees of consanguinity, if any, to which the term may refer. Xn this particular case the owner’s sister, an elderly maiden lady, resided with him, kept his house in order and devoted her spare time to manual labor upon the fifteen acres of ground which seems to have constituted the cultivated land of the homestead. These two were the family. She was supported from the land, and seems, during the many years she resided on it, to have accumulated a couple of horses, a cow and two calves. [548] The argument of the appellant was largely devoted to showing that she was independent of her brother in the matter of sustenance, and should have made her own home. The circumstances in evidence do not so impress us. They were sufficient to entitle the owner to the benefit of the homestead as to the land in question, and, for that purpose, his sister was a member of his family. “It is not necessary that he shall be a father or a husband.'’ ’ [Grocery Co. v. Monroe, 142 Mo. I. c. 170; Broyles v. Cox, 153 Mo. 242, 248; Bank v. Guthrey, 127 Mo. 189; Brown v. Brown’s Admr., 68 Mo. 388; Whitehead v. Tapp, 69 Mo. 415; Forbes v. Groves, 134 Mo. App. 729.] In the case last cited the question seemed to be whether the son or his aged father was at the head of the family. In deciding in favor of the former the Kansas City Court of Appeals remarked: “It is one thing to be honored as- the patriarch of the family and quite another to possess real and final authority in its affairs.” The appellant cites Elliot v. Thomas, 161 Mo. App. 441, as an authority for the proposition that “in order that an unmarried man may be entitled to a homestead in lands, exempt from execution on debt, there must be a person living with him on said* premises, who is legally or morally depending on him for support, and one whom he does support. It is not enough that he may support the person, but the person must be wholly dependent on him for support.” If there is anything in the elaborate and learned opinion in that case inconsistent with the doctrine we have stated and cases we have cited, we are compelled upon principle and authority to disregard it. The judgment of the circuit court is affirmed. Bailey, G., concurs. PER CURIAM: — The foregoing opinion of BeowN, C., is adopted as the opinion of Court in Banc. Grooves, G. J., concurs in separate opinion, in which Woodson, J., joins; Williams, Blair and Walker, JJ., concur; Bond, J., dissents in separate opinion; Baris, J., dissents.